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GAY UNIONS: EFFECTS ON LEAVE OF ABSENCE RIGHTS

By: Martha J. Cardi, Esq. and Megan G. Holstein, Esq.

Last week, the United States Supreme Court heard oral arguments on two cases concerning gay rights.  These cases provide an opportune time to consider gay couples’ rights and employers’ obligations under various leave of absence laws.

The first case, heard by the Court on March 26, concerns the constitutionality of California’s Proposition 8 ban on same-sex marriage.  The second case, heard on March 27, is a challenge to the federal Defense of Marriage Act (DOMA). DOMA defines marriage as the union of a man and woman and therefore prohibits federal law, including the Family & Medical Leave Act (FMLA), from recognizing and providing benefits to same-sex spouses.

How might these cases affect leave of absence rights and obligations?   Under the FMLA, a spouse is defined as a husband or a wife as defined or recognized under state law.  Employees are entitled to take up to 12 weeks of leave per year for various reasons, including caring for a spouse with a serious health condition.  However, because DOMA prohibits recognition of same-sex marriages for federal benefits, same-sex spouses cannot take leave to care for each other even if state law recognizes their relationship. Thus currently, the FMLA only provides leave rights to opposite-sex spouses.

If the Supreme Court rules that DOMA is unconstitutional, same-sex couples married under the law of a state will be “spouses” as defined by the FMLA and will be entitled to take leave when the other has a serious health condition.

Many state laws already provide leave rights to same-sex couples.  In some cases this is explicitly stated in the leave law itself (such as Oregon’s Family Leave Act, which allows registered domestic partners to have the same leave rights as heterosexual married couples).  In other states, such as California, the leave law does not provide such rights directly.  Instead, some states have passed a domestic partnership or civil union law that confers the same rights on such couples under state law as are enjoyed by heterosexual married couples, including leave rights conferred upon “spouses” or husbands and wives.

Despite legislation like DOMA and Proposition 8, more and more states are moving toward recognizing same sex relationships such as civil unions, domestic partnerships, and marriage.  On March 21, Colorado’s governor signed a bill allowing same sex relationships to be formalized as civil unions, effective May 1 of this year.  In addition to Colorado, 5 other states recognize civil unions (Delaware, Hawaii, Illinois, New Jersey, and Rhode Island), 7 states and Washington D.C. have domestic partnership laws (California, Maine, Nevada, New Jersey, Oregon, Washington, and Wisconsin), and 9 states recognize same sex marriage (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington).

In contrast, some states are putting forth initiatives to prevent the state from passing laws that recognize the legal relationship between same-sex couples, such as California’s Proposition 8.  However, the Supreme Court’s ruling on these cases will impact whether such initiatives prohibiting same-sex marriages will succeed.  Additionally, the Supreme Court’s decisions will impact whether employers must provide FMLA and state leave law leaves of absence for same-sex couples.

Reed Group is following these cases as well as all states’ initiatives to recognize or prohibit the recognition of same-sex relationships and their impact on the field of leave of absence.  Stay tuned for more developments!

For more information please call 866-218-4650.  Click here to access a free 14-day trial of Leave of Absence Advisor™, including the Pending Legislation feature.


1 Comment

  1. […] A link to the text of the bill can be found here.  For previous discussions about leaves of absences as they relate to civil unions, domestic partners, and same sex-marriages, see Reed Group’s earlier blog post. […]

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